DCCADV Testifies at DC City Council Committee Hearing on Reporting Child Sexual Abuse

Mar 13, 2012

Committee on the Judiciary Public Hearing on

Child Sexual Abuse Reporting Act of 2012, B19-647

March 12, 2012

Testimony of:

Amy Loudermilk, MSW

Senior Policy Specialist

DC Coalition Against Domestic Violence

Good morning. I am Amy Loudermilk, Senior Policy Specialist for the District of Columbia Coalition Against Domestic Violence. Thank you, Chairman Mendelson and members of the Committee, for your tireless commitment to protecting the rights of victims of crime. Today’s hearing on the Child Sexual Abuse Reporting Act of 2012 (“the Act”) reflects that commitment, for which we are greatly appreciative. It is our understanding that this bill was put forth with good intentions to respond to the sexual abuse case at Pennsylvania State University as well as recent problems with child sexual abuse reporting between adults and DC Public Schools (DCPS). We wish to work together with the Committee to strengthen our laws to better combat child sexual abuse, but we cannot support the legislation before us today because it will negatively impact adult survivors of childhood sexual abuse as well as victims of domestic violence. We will instead offer alternate recommendations to try to address this important issue.

The bill in its current form would give DC a so-called “blanket” mandatory reporting statute by requiring every adult to report suspected abuse, which is problematic for several reasons: it will do little to actually increase protections for children, will threaten attorney-client privilege, may increase danger for victims of domestic violence, and may punish adult survivors of childhood sexual abuse.

Currently the Child & Family Services Agency (CFSA), the DC agency tasked with investigating reports of child abuse/neglect, is in court receivership for its poor performance and is struggling to bring themselves up to standards. The agency remains chronically underfunded and understaffed. Thus, we are concerned that the passage of this bill will lead to significantly more reports made to CFSA without any additional resources to deal with the increase and subsequent investigations that will need to happen. Additionally, there remain systemic issues at CFSA that need to be addressed so that a child in danger actually receives help and protection. While it’s probably true that CFSA appropriately handles the majority of reports, it should be noted that the making of reports does not necessarily equate to child protection. You may recall the 2008 case in which U.S. federal marshals discovered the decomposing bodies of Banita Jacks’ four children when sent to serve an eviction notice at her home in the District. Multiple professionals involved in the children’s lives (ranging from teachers to social workers, etc) made numerous calls to CFSA to report their suspicions of abuse, yet the children still fell through the cracks. They paid the ultimate price instead of being protected by CFSA. While this may be only one case in DC, a 2007 study examining mandatory reporting worldwide came to the conclusion that there is little empirical evidence that blanket mandatory reporting statutes are more effective at decreasing child sexual abuse or even increasing valid reports. The same study found that universal mandatory reporting laws put a huge strain on child protection systems, reports do increase, but that increase is mostly due to false reporting. Passing this legislation without providing more financial resources to CFSA will exacerbate an already serious problem as current resources are simply not enough to deal with the anticipated influx of reports.

This bill also completely ignores long-standing attorney-client privilege protections as attorneys would indeed become a class of mandated reporters. Attorney client privilege is a hallmark of the profession and attorneys are duty bound to provide the best possible representation to their clients, and as such need to have the full scope of information on a case. Attorneys are not required to report past crimes their clients have committed or past crimes their clients may have knowledge of. There is an imminent crime exception when attorneys believe without their disclosure death or severe bodily injury will occur. Sweeping attorneys into the Act will chill attorney-client communications and lead to clients not getting the representation and help they need.

An attorney forced to tell their client before they meet that they will have to disclose any incidents of child sexual abuse told to them will give a message to clients that they cannot fully trust their attorney to keep their problems in confidence. Attorneys are there to advise clients on the best course of action, and having the full scope of information is essential to advising clients on the best course of action. In the domestic violence context, victims are often afraid of disclosing violence or suspected abuse perpetrated against their children out of fear that the children will be removed from their care. Meeting with an attorney where victims can candidly divulge the totality of the abuse and discuss options, victims’ fears can be assuaged and an attorney can fully brief them on what should happen once CFSA is involved, and help the victim plan to legally protect her children. If this Act were in effect, victims of domestic violence who may suspect their abuser is also abusing their child would have no trusted source to turn to.

In fact, were this Act law, any victim with knowledge of child sexual abuse could be sent to jail for failure to report that information. Victims of domestic violence are in the best position to make judgments about their safety and the safety of their children. A victim and her children are most at risk for violence when they decide to leave the relationship. Oftentimes it is only after leaving the relationship and finding a safe and secure place to live that victims are able to begin to address the abuse that they and/or their children sustained. It is at this time that victims often feel safe enough to make the report of suspected abuse and get the counseling and other assistance that their children might need. And indeed, reporting at this stage is a much safer option. If outside agencies intervene before a victim has a chance to leave for a safer home, it can indicate to an abuser that a victim has shared information about the abuse and places that victim and her children at a greatly increased risk of injury or death. This bill would also severely negatively impact adult survivors of childhood abuse who have younger siblings that also may be abused. An 18 year old who may have been sexually abused her entire life may face jail time if she does not report that she knows her father has also sexually abused her younger, minor sister. Abuse during childhood is a significant trauma, often resulting in debilitating mental health issues such as post-traumatic stress disorder, major depression and panic disorders. Even at age 20 or 25, many survivors would not be in a position psychologically to report their abuser even if they knew with certainty that a younger sibling was being abused. Abusers often threaten severe bodily harm or death if a victim tells, and that threat is no less real simply because a victim has reached adulthood. To make an 18 year old victim fear imprisonment for not reporting to the authorities that a younger sibling is being abused is unconscionable, and ensures the victim will be re-victimized again by the criminal justice system.

Although it may be easy to exempt attorneys from the requirements of this Act, DCCADV has not been able to figure out how to pass this bill while also still protecting victims of domestic violence and adult survivors of childhood abuse. We instead propose the Council expand the scope of the current mandatory reporting statute and/or increase the proposed criminal penalties for failure to report. When thinking about the specific cases that prompted the drafting of this bill, and looking at the current categories of mandatory reporters, one notices the glaring omission of huge numbers of school personnel. Currently the statute covers teachers, athletic coaches, and school officials. School officials, however, is not defined and is very ambiguous. We recommend clarifying and broadening the scope so that anyone employed by DCPS, charter schools or any university also become mandated reporters.

Another pertinent group to include would be commercial film processors, who may discover images that indicate child sexual abuse and have the contact information for the person who submitted images.

The Committee may also wish to increase the criminal penalties associated with failure to report. The current penalties proposed for someone found guilty of the failure to report is a fine of a maximum of $300 or imprisonment for 90 days. These penalties are similar to those of a minor traffic offense and don’t seem to be conveying the message that the Council wants to send, which is that of a strong deterrent factor.

And finally, the Committee can also look to non-punitive solutions to this problem. Directing increased funds to the Office of Victim Services would provide an opportunity to expand training on child sexual abuse and its effects to mandatory reporters, targeting communities that may be the most able to help. Voluntary disclosure of child sexual abuse can yield better results and decrease fear for those who have knowledge of such abuse.

We appreciate the introduction of this Act to open a dialogue on how the District can better protect victims of childhood sexual abuse. We hope the Committee will take our concerns into consideration and instead of moving forward with this Act, amend it to include some of the suggestions put forth today. DCCADV would be happy to work with Committee staff to draft appropriate language. Thank you again for you eagerness to strengthen our laws to better protect victims, we remain very grateful for your dedication to these issues. Thank you for the opportunity to testify before you and I look forward to answering any questions you may have.

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